Cinneadh
Ms X and ESB
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-93412-H9Y7D4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-93412-H9Y7D4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
1. On 12 December 2019, the appellant submitted a multi-part request to ESB. Specifically, she sought access to:
2. ESB issued two decision letters to the appellant. On 9 January 2021, it issued a decision relating to parts 1-4 and 6-8 of her request, wherein it stated that having carried out searches for environmental information, no information that would satisfy those parts of her request is held by or for ESB. It proceeded to formally transfer those parts, under article 7(6)(a) of the AIE Regulations, to ESB Networks DAC (ESB Networks) for processing. On 10 January 2020, it is issued a decision relating to part 5 of her request, wherein it granted access to one record in part, redacting certain information under article 8(a)(i) of the AIE Regulations on the ground that it was third party personal information.
3. On 16 January 2020, the appellant sought an internal review of ESB’s decision dated 10 January 2020 relating to part 5 of her request. She suggested that while she had received a two-page “Client Information Letter” it was not sufficient for her to see the relationship between the supply and installation of smart meters and how the ESB is insured for same as she had not been provided with the full insurance document.
4. On 14 February 2020, ESB issued its internal review decision. It refused access to an insurance policy it had identified as relevant to the appellant’s request on the ground that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. It indicated, however, that if the insurance policy was found to be “environmental information” it would refuse access to the document under article 9(1)(c) of the AIE Regulations (commercial or industrial confidentiality).
5. The appellant’s appeal to my Office was received on 11 March 2020.
6. During the course of the review, my Investigator notified ESB’s insurer, as a relevant third party, of the review and invited it to make submissions. It commented that insurance policies contain confidential information and are generally regarded as confidential documents.
7. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and ESB. I have also examined the contents of the document at issue. In addition, I have had regard to:
8. I have taken account of the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017 IECA 223 ( Minch ), Redmond & Another v Commissioner for Environmental Information & Another [2020 IECA 83 ( Redmond ), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020 IEHC 190 ( ESB ) and Right to Know CLG v. Commissioner for Environmental Information and Raidio Teilifís Éireann [2021 IEHC 353 ( RTÉ ) and the decisions of the European Court of Justice in case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (Glawischnig ) and case C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg) . I have also had regard to the judgment of the Court of Appeal of England and Wales that is referred to in the latter three Irish judgments, Department for Business, Energy and Industrial Strategy v Information Commissioner [2017 EWCA Civ 844 ( Henney ).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
11. My powers as Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. In accordance with my Office’s Procedures Manual, available at www.ocei.ie, my general practice in cases such as this, concerning a threshold jurisdictional question, is to limit my review to the preliminary matter of whether the information at issue is "environmental information" such that it falls within the remit of the AIE Regulations.
12. Accordingly, I am satisfied that the scope of this review concerns whether ESB was justified in refusing access to the insurance policy for the supply and installation of smart meters on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
13. A review by my Office considered to be de novo, which means that it is based on the circumstances and the law at the time of my decision.
14. It is also clear from the comments of the Court of Appeal in Redmond , at paragraph 51, that the nature of a review by my Office is inquisitorial rather than adversarial in nature. The extent of the inquiry is determined by me and not the parties to the appeal.
##Definition of “environmental information”
15. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with Article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations provides that "environmental information" means:
"any information in written, visual, aural, electronic or any other material form on –
16. The AIE Regulations transpose the AIE Directive. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad ( Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment ( Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition ( Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
17. The appellant is of the view that the insurance policy at issue is “environmental information”. She made submissions to this Office in support of her position, which highlighted, among other things, the non-ionising radiation / electromagnetic fields (EMFs) emitted by smart meters, related health concerns, the risk of fire from smart meters, risks associated with installation, and the need to have appropriate insurance cover.
18. It is ESB’s position that the insurance policy at issue is not “environmental information” within the meaning of any of the paragraphs of the definition in article 3(1) of the AIE Regulations. The focus of its submissions to my Office concerned paragraph (c).
19. In its submissions to my Office, ESB explained that the Commission for the Regulation of Utilities (the CRU) tasked ESB Networks [1] with delivery of the Rollout Programme of the National Smart Metering Programme, which involves upgrading all of Ireland’s electricity meters to smart meters (i.e. the supply and installation of smart meters).
20. Although not conceding that the Rollout Programme is in fact a measure or activity likely to affect the environment within the meaning of paragraph (c), ESB stated its position that the insurance policy at issue, which is a combined liability policy, is not information “on” the Rollout Programme.
21. ESB referred to Glawischnig , where the CJEU, in considering the previous AIE Directive, stated:
“Directive 90/313 is not intended, however, to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision.” ( Glawischnig at paragraph 25).
ESB submitted that it is not permissible to take an approach of assessing whether information is “on” a measure by reference to whether it relates to or has a connection to one of the environmental factors mentioned in the definition, however minimal.It noted that such an approach is what the CJEU in Glawischnig stated is not permissible because, contrary to the intention of the Directive, it would lead to a general and unlimited right of access to all such information.I note that ESB’s comments are reflective of those of the Court of Appeal of England and Wales in Henney at paragraph 35.
22. ESB argued that the insurance policy at issue is, in all respects, a general and generic policy that applies across all ESB Group entities, units, and activities, and one that it is in no way associated specifically, or indeed at all, with the Rollout Programme. ESB explained that the insurance policy provides blanket cover for all statutory and other activities of ESB and subsidiary/associated companies such as ESB Networks, including the supply and installation of smart meters. ESB explained that it has sought to insure against certain risks associated with its activities generally and noted that the policy “was not originally taken out, or even later considered for amendment, or amended, or extended, to cover any risks that might be considered to arise from the [Rollout Programme].” ESB contended that while the insurance policy covers insured events arising in connection with the work of the ESB Networks business unit in carrying out the full range of its activities regarding the transmission and distribution electricity networks, the policy does not explicitly mention the National Smart Metering Programme or the Rollout Programme, or distinguish in any way between the work done by ESB Networks in relation to that programme and other work done by that business unit. ESB noted that, in the context of insurance, it does not regard activities in relation to the Rollout Programme as being any different to the activities that ESB Networks carries out generally in relation to the metering obligations imposed on it under its distribution system operator licence granted by the CRU. ESB argued that had the appellant not requested access to an insurance document for the supply and installation of smart meters, it would not have occurred to anyone to associate the policy with the Rollout Programme. ESB stated that having been tasked by the CRU with the Rollout Programme of the National Smart Metering Programme and having regard to obligations contained in its distribution system operator licence, ESB Networks was under a legal obligation to implement the Rollout Programme whether with or without insurance cover in respect of risks that might be considered as associated with the Rollout Programme. It noted that the CRU’s “Decision on the National Rollout of Electricity and Gas Meters” (Reference: CER12008) makes no mention of insurance, nor has the CRU otherwise ever imposed any obligations on ESB Networks regarding insurance in relation to the Rollout Programme undertaken by ESB Networks.
23. ESB acknowledged that information does not have to be intrinsically environmental to fall within the scope of the definition. However, it contended that this does not mean that a document, such as the insurance policy at issue, should readily or indiscriminately be regarded as being information “on” a measure or activity within the meaning of paragraph (c). It noted that in Henney , the Court stated:
A literal reading of [article 3(1)(c)] would mean that any information about a relevant "measure" would be environmental information, even if the information itself could not be characterised as having, even potentially, an environmental impact as defined. However, … ‘simply because a project has some environmental impact’, it does not follow that ‘all information concerned with that project must necessarily be environmental information’. Interpreting the provision in that way would be inconsistent with the decision in Glawischnig's case... ” ( Henney at paragraph 45).
ESB submitted that it is arguable that the insurance policy is neither information concerned with the Rollout Programme nor information concerning the Rollout Programme that is also “on” it. It referred to Henney where the Court found that the Upper Tribunal was entitled to find that a Project Assessment Review focused on the communications and data component of the UK Smart Metering Programme was information “on” the UK Smart Metering Programme because the communications and data component was integral to the programme as a whole and critical to its success. ESB stated that, in contrast, the insurance policy at issue is not a component part of the Rollout Programme or, in any way, integral or critical to or a key element in the success of the Rollout Programme and the fact that the insurance policy may (or may not) cover events arising in connection with work undertaken by ESB Networks in furtherance of the Rollout Programme does not make it so. It contended that the insurance policy at issue cannot be considered to be information regarding a key element or component part of the Rollout Programme (or the National Smart Metering Programme) and cannot therefore be information “on” a measure or activity within the meaning of paragraph (c).
24. ESB also noted in Henney the Court, in reference to determining whether information is “on” a measure or activity, commented:
“the way the line will be drawn is by reference to the general principle that the regulations, the Directive, and the Aarhus Convention are to be construed purposively. Determining on which side of the line information falls will be fact and context-specific. But it is possible to provide some general guidance as to the circumstances in which information relating to a project will not be information "on" the project for the purposes of [article 3(1)(c)] because it is not consistent with or does not advance the purpose of those instruments.” ( Henney , at paragraph 47).
ESB submitted that in this case, the insurance policy would not better inform the public, or better enable the public to contribute to environmental decision-making in relation to the Rollout Programme or the National Smart Metering Programme if they were able to have access to it – whether they be persons with no particular experience of the electricity industry, or persons with such experience. It contended that the insurance policy should not, on a purposive construction, be deemed to be “on” the Rollout Programme, because that is not consistent with, nor does it advance the purpose of, the AIE Directive and the Aarhus Convention.
25. In my view, paragraph (c) of the definition, which provides that “environmental information” means any information on measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements, is the most relevant to this review. Accordingly, I will proceed to consider it first.
26. Paragraph (c) requires the identification of a relevant measure or activity, which the information at issue is “on”. Information may be “on” more than one measure or activity ( Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned ( ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples ( Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity ” ( Mecklenburg at paragraph 20, emphasis added), and a similarly expansive approach should be taken to the term ‘activity’ ( RTÉ , at paragraph 19).
27. The “About ESB” section of ESB’s 2021 Annual Report [2] states:
“ESB was established in 1927 as a statutory body under the Electricity (Supply) Act, 1927. With a holding of 96.5%, ESB is majority owned by the Irish Government. The remaining 3.5% is held by the trustees of an Employee Share Ownership Plan. As a strong, diversified utility, ESB operates across the electricity market, from generation through transmission and distribution, to supply of customers in addition to using our networks to carry fibre for telecommunications. ESB is a leading Irish utility with a regulated asset base of approximately €10.9 billion (comprising ESB Networks €8.8 billion and NIE Networks €2.1 billion), a 33% share of generation in the all-island market and supply businesses supplying electricity and gas to over 1.9 million customer accounts throughout the islands of Ireland and Great Britain. As at 31 December 2021, ESB Group employed over 7,800 people.”
28. I understand that ESB operates through a number of different business units and subsidiary/ associated companies (see ESB’s 2021 Annual Report). I do not intend to refer to them all here. However, I would note that some are referred to on ESB’s website https://esb.ie/ within the “What We Do” section and under “Discover Our Businesses”, including: Generation and Trading; ESB Networks; Electric Ireland; Smart Energy Services; Ecars; and ESB International. In my view the information provided in ESB’s 2021 Annual Report in respect of those areas provides an indication of some of the operations with which ESB and its subsidiary/associated companies are engaged – I have outlined some of this information below.
29. As noted, ESB Networks is the DSO. In its submissions to my Office, ESB stated that the DSO licence granted by the CRU to ESB Networks contains a number of legal obligations, including the provision of metering and data services (Condition 9). ESB explained that the CRU tasked ESB Networks with delivery of the Rollout Programme of the National Smart Metering Programme (the Rollout Programme), which involves upgrading all of Ireland’s electricity meters to smart meters (i.e. the supply and installation of smart meters). According to ESB Networks’ website, [3] the Rollout Programme will involve the replacement of 2.4 million electricity meters in homes, farms, and businesses across Ireland with next generation meters. Meters can be located both indoors and outdoors. It is necessary for the electricity supply to be turned off in order to carry out the work. The replacement work is being carried out by either ESB Networks technicians or electrical contractors working on behalf of ESB Networks. To-date over 900,000 smart meters have been installed. The rollout is being progressed on an area by area basis.
30. ESB has identified the insurance policy at issue, a general combined liability policy, which provides cover for all statutory and other activities of ESB as the relevant insurance policy for the supply and installation of smart meters. ESB is defined in the policy in very broad terms, including directors, executives, employees, servants and agents and its subsidiary/associated companies. I am satisfied that the Rollout Programme, which involves the replacement of 2.4 million electricity meters across Ireland with next generation meters by ESB Networks, is a measure or activity within the meaning of paragraph (c). I am also cognisant that, in identifying the relevant measure or activity for the purposes of this review, information may be “on” more than one measure or activity. As set out above, I note that ESB and its subsidiary/associated companies are involved in a wide range of operations, including, for example: electricity generation, transmission, distribution, and supply; engineering consultancy; the provision of smart energy services; and the operation and maintenance of public charging infrastructure for EV’s. Given that these are statutory or other activities of ESB, I have no reason to doubt that many of these operations are covered, at least to some extent, by the insurance policy at issue. I am satisfied that, many, if not all, of these operations are measures or activities within the meaning of paragraph (c).
31. To meet the definition, the measure or activity must affect or be likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) or designed to protect the environment ( Redmond at paragraph 57). A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required ( Redmond at paragraph 63). It is also important to note that the actual outcome of a measure or activity is irrelevant. In this respect, I note the analysis of Hogan J in Minch at paragraph 40 of his judgment.
32. In my view, it is evident that there is a real and substantial possibility that many of the operations of ESB (as defined in the policy) covered by the insurance policy (including: electricity generation, transmission, distribution, and supply; engineering consultancy; the provision of smart energy services; and the operation and maintenance of public charging infrastructure for EVs) will affect the environment. Such operations will impact the environment, for example, due to their nature as components of the energy sector; the work, materials, emissions, pollution, waste, water, transport, fuel, and land-use changes involved in undertaking them; and/or their role in the low carbon transition.
33. I note that the “ESB Group Policy – Environment and Sustainability” (Version 4), [4] which “applies to all ESB Group companies”, states “ESB recognises that our activities, including electricity generation, transmission, distribution and supply, have environmental impacts”. I also note that ESB’s Annual Report 2021 states that in December 2021, ESB’s 2040 Strategy – Driven to Make a Difference: Net Zero by 2040” (the 2040 Strategy) [5] was approved and it outlines a commitment to achieve net zero by 2040. The Annual Report 2021 states that the 2040 Strategy “sets a clear direction for ESB that directly supports the achievement of the UN’s Sustainable Development Goals for ensuring access to affordable, reliable, sustainable and modern energy for all (Goal 7), building resilient infrastructure (Goal 9) and taking urgent action to combat climate change and its impacts (Goal 13)”. The ESB’s Sustainability Report 2021 [6] explains:
“Net Zero means ambitious reductions in greenhouse gas emissions as close to zero as possible and balancing remaining residual emissions through credible carbon removal projects and offsets. The term net zero is important because – for CO2 at least – this is the state at which global warming stops. Net Zero requires all available technologies to be used to reduce baseline emissions. Only truly ‘hard-to-decarbonise’ emissions may be compensated with offsets. For ESB, this means reducing emissions from electricity generation to zero, all other direct emissions (vehicle fleets and fugitive emissions) towards zero and working through our business activities and with strategic and supply chain partners to reduce our indirect emission to or towards zero. Remaining residual emissions would remain to be handled through a credible offset mechanism.”
34. The Sustainability Report 2021 contains ESB’s environmental disclosures. It outlines that ESB reports emissions using the Greenhouse Gas Protocol methodology, which uses three “scopes” to help delineate direct and indirect emission sources. In respect of ESB, Scope 1 (direct) emissions concern thermal generation emissions, vehicle fleet emissions, buildings emissions, and fugitive emissions. Scope 2 (indirect) emissions concern emissions associated with electricity networks transmission and distribution losses and electricity consumption. Scope 3 (indirect) emissions concern emissions associated with 8 categories (purchased goods and services, capital goods, fuel and energy, transport and distribution, waste, business travel, employee commuting, and use of sold products). ESB’s 2021 totals for calculated Scope 1, 2, and 3 emissions were 7,875,496 tonnes CO2e, 506,380 tonnes CO2e, and 3,327,845 tonnes CO2e respectively, with a combined total of 11,709,721 tonnes CO2e.
35. In addition to disclosures regarding emissions, the Sustainability Report 2021 sets out detail in respect of ESB’s environmental management systems, management of operational impacts on biodiversity, energy management systems, water consumption, conservation and monitoring, and effluent and waste management. It also contains examples of how the different ESB businesses identified in the previous section more generally impact the environment – I have outlined some of this information below:
* ESB International and Engineering and Major Projects EMP – (see Annual Report 2021 page 68 and Sustainability Report 2021 page 38)
36. I am satisfied , that many of the operations of ESB and its subsidiary/associated companies covered by the insurance policy are measures and/or activities likely to affect the environment.
37. Where the relevant measure or activity has the requisite environmental effect, one must consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations.
38. Information is “on” a measure or activity if it is about, relates to or concerns the measure or activity in question. It is not sufficient for information to be merely connected to the measure or activity, but the information need not be specifically, directly or immediately about the measure or activity. It is permissible to consider the wider context in determining whether information is “on” a measure or activity, which may not be apparent on the face of the information itself ( Henney at paragraphs 37-44, referred to in Redmond at paragraph 99, ESB at paragraphs 36-45, and RTÉ at paragraph 52). Information that is integral to the relevant measure or activity is information “on” it ( ESB at paragraphs 38, 40 and 41), while information that is too remote from the relevant measure or activity does not qualify as environmental information ( ESB at paragraph 43). Information that is not consistent with or does not advance the purpose of the AIE Directive may not be “on” the relevant measure or activity ( ESB at paragraph 44 and Henney at paragraph 47). As “any information … on” a measure affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment ( Redmond at paragraphs 57 and 59). However, consideration of whether information is “on” the measure does require examination of the content of the information ( ESB at paragraph 50).
39. In this case, the measures and/or activities identified are the many operations of ESB and its subsidiary/associated companies covered by the insurance policy likely to affect the environment.
40. Having examined ESB’s submissions and the content of the insurance policy at issue, which is dated from 31 March 2019 to 30 March 2020, I note that it covers “all statutory and other activities” of ESB and its subsidiary/associated companies . I accept that the insurance policy is a general (combined liability) policy which does not explicitly refer to each and every operation engaged in by ESB and its subsidiary/associated companies and that it may not have been taken out, amended and/or extended to cover risks considered to arise from specific operations. I also acknowledge ESB’s comment that ESB Networks was under a legal obligation to implement the Rollout Programme whether with or without insurance cover.
41. However, I do not accept the Rollout Programme or, indeed, many of the other activities of ESB and its subsidiary/associated companies which carry a high risk stemming from either the probability or impact of a claim, would be undertaken without some form of insurance. At the very least, given the level of claim that could be made against ESB, it would require self-insurance by means of acceptance of risk on the part of ESB. The latter would usually be provided for by the company in the form of reserves, or another funding mechanism. In its Report on the Cost of Employer and Public Liability Insurance, the Cost of Insurance Working Group [7] (to which ESB is a contributor as part of the Self Insurance Task Force) noted the rise of self-insurance for some risks for what were deemed to be somewhat more controllable risks, but the majority of companies retain insurance cover for major risks, particularly regarding public liability cover.
42. In any event, it is my view that the whether or not ESB is required to hold insurance is a red herring. The fact remains that the insurance policy exists and it does insure against certain risks associated with the activities generally of ESB and its subsidiary/associated companies, providing some form insurance cover for “ all statutory and other activities”, including operations likely to affect the environment.
43. As noted above, information may not be “on” a relevant activity or measure if it is not consistent with or does not advance the purpose of the Aarhus Convention and the AIE Directive. ESB and its subsidiary/associated companies clearly have an environmental remit. The insurance policy at issue provides cover in respect of all activities of ESB and its subsidiary/associated companies, including activities likely to affect the environment. Many of those activities require interaction with the public and benefit from public support. The insurance policy, among other things, sets out the limits of indemnity for public liability, products liability, professional indemnity, and financial loss. It also sets out the self-insured retention for public products and financial loss liability and professional indemnity. It further includes relevant extensions, conditions, and exceptions.
44. For example, the smart meter programme involves representatives of the ESB accessing almost every residential property in the state and carrying out small but significant work. If this was not done correctly, there could be major consequences for the homeowner, such as damage to property or injury to the occupiers. The fact that the ESB has significant insurance cover can only serve to encourage public support for the programme and ultimately to improve participation in the programme.
45. In my view, public access to the insurance policy, even where it is a general (combined liability) policy, would also contribute to the accountability and transparency of the activities engaged in by ESB and its subsidiary/associated companies that have an impact on the environment. I further consider that it would strengthen public trust in and support of their implementation. Accordingly, it would be in line with the purpose of the Aarhus Convention, as set out at paragraphs 9 and 10 of the Preamble, and the AIE Directive, as set out in Recital 1.
46. In all the circumstances, I find that the insurance policy at issue amounts to information “on” the many operations of ESB and its subsidiary/associated companies covered by the insurance policy likely to affect the environment.
47. In conclusion, I find that the insurance policy at issue is environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. In light of this finding, it is not necessary for me to consider whether the document also falls within other paragraphs of the definition.
48. I consider that the most appropriate course of action to take in this case is for me to annul ESB’s decision to refuse access to the insurance policy on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations and direct it to undertake a fresh decision-making process in respect of the document. In doing so, I wish to make a number of comments.
49. I note ESB’s position that the exception in article 9(1)(c) of the AIE Regulations would apply to the document if it was found to be environmental information. If ESB considers that refusal under article 9(1)(c) of the AIE Regulations (or indeed any other provision under articles 8 or 9) is appropriate, it must set out its reasons for reaching this conclusion, having particular regard to article 10 of the AIE Regulations.
50. ESB identified the insurance policy, as the relevant policy for the supply and installation of smart meters and withheld it in full on the basis that it was not environmental information. I note that my Investigator, during the course of the review, informed the appellant that the insurance policy is a general combined liability policy, which provides blanket cover for all statutory and other activities of ESB and its subsidiary/associated companies. She explained that it is high-level and does not specifically refer to smart meters or to their rollout/supply/installation. In response to my Investigator’s correspondence, the appellant indicated that she would be willing to confine the scope of the information sought by her to the parts of the insurance document which are relevant to emissions/damages/harms related to smart meters and referred to specific types of information. As I have found the insurance policy, in its entirety, to be “on” the many operations of ESB and its subsidiary/associated companies covered by the insurance policy likely to affect the environment and, consequently, environmental information within the meaning of paragraph (c), I do not consider it appropriate to examine the document in any further detail at this stage. However, it seems to me, that a first step in processing the request afresh, it would be beneficial for both parties to agree, in the first instance, on the precise nature of the information sought by the appellant. It may be the case that certain information within the insurance document simply falls outside the scope of the specific information required. If relevant, ESB should indicate which information is being withheld on that basis.
51. Separately, it may be the case that certain information sought by the appellant is simply not contained within the insurance document. It is important to note that, in accordance with article 7(1) of the AIE Regulations, the AIE Regulations only require public authorities to make available environmental information held by or for them. As ESB ought to be aware, article 7(5) is the relevant provision to consider when the question arises as to whether requested environmental information is held by or for the public authority concerned and may be a relevant consideration in this matter. If ESB wishes to rely on article 7(5) of the AIE Regulations, it must set out its reasons for doing so.
52. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul ESB’s decision to refuse access to the insurance policy at issue on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. I direct ESB to conduct a new decision-making process in respect of the document in accordance with the provisions of the AIE Regulations.
53. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Ger Deering, Commissioner for Environmental Information
[1] ESB Networks DAC, a ring fenced subsidiary within ESB, is the licensed operator of the electricity distribution system. Staff in the ESB Networks business unit carry out the licensed functions of the Transmission Asset Owner, Distribution Asset Owner and Distribution System Operator, under the management of ESB Networks DAC (see https://www.esbnetworks.ie/acting-responsibly/freedom-of-information/publication-scheme/information-about-the-dso )
[3] https://www.esbnetworks.ie/existing-connections/meters-and-readings/smart-meter-upgrade/smart-meter-upgrade-faqs (See “Why are all existing meters being replaced” and “what is involved in the meter replacement process”).